There were two really interesting Supreme Court Judgments handed down on the 2nd March 2016; Mr A M Mohamud (in substitution for Mr A Mohamud (deceased) v WM Morrison Supermarkets plc and Cox v Ministry of Justice and each considered one of the two key questions in “vicarious liability” cases. Both cases were successes for the claimant which will make access to justice easier in certain situations so I want to run through the first case and what this might mean.

Let’s start with what vicarious liability is. In essence, it means that a party who is responsible for and has control over a third party can be held liable for the negligent actions of that third party. An example of where we use this regularly is in clinical negligence cases, in most situations it is the NHS Trust who is sued rather than the individual doctor for the actions of that doctor.

To be held vicariously liable there must be;

1. A relationship between the responsible party (e.g. employer) and the wrongdoer (e.g. employee), and
2. A connection between the wrongdoer’s negligent act and the nature of their job or what the responsible party has asked them to do 

The case I am considering looks at the question of the “connection” and whether the actions of the wrongdoer were within his normal job role. Mohamud v Morrison Supermarkets concerns a really horrific set of facts. Somalian born Mr Mohamud was at the petrol station of a Morrison Supermarket in Birmingham and on his way to an event in London with some friends who were sat in his car. While at the petrol station he asked whether or not he could print some documents from a USB stick which he had on him. Mr Khan, an employee of Morrison’s was one of two staff present and responded to Mr Mohamud with really foul and racist language to get him to leave, which Mr Mohamud eventually did. It was accepted that this was a completely unprovoked verbal attack.

Unfortunately, before Mr Mohamud could get in his car and drive off, Mr Khan ran outside and began to physically attack Mr Mohamud. He suffered very serious head injuries and then sought to sue Morrison’s on behalf of Mr Khan.

Although the first judge was sympathetic with Mr Mohamud, he said Morrison’s was not liable for this. The reason was that he didn’t think the second test for vicarious liability was met, so although Mr Khan’s job involved some interaction with customers and members of the public, it involved nothing more than serving and helping then. In essence, Mr Khan was not acting within part of his job role when he made the decision to attack Mr Mohamud and so it wasn’t reasonable to expect Morrison’s to be responsible for his behaviour. Mr Mohamud’s lawyers appealed this decision and it went to the Court of Appeal – who agreed with the first judge and so the Claimant’s lawyers appealed again and took their case to the Supreme Court.

The Supreme Court overturned both previous decisions and said that Morrison’s was liable, the reasons being;

1. It was Mr Khan’s job to attend to customers and respond to their enquiries and so his conduct in answering Mr Mohamud’s request although inexcusable was still within his usual job role, and
2. The fact that Mr Khan then followed up on his verbal assault by chasing Mr Mohamud outside to abuse him physically was part of that same, single episode to remove him from the premises and again, although this was a complete abuse of his power and totally unacceptable, he was doing it in connection with the business and his job at Morrison’s.

Strange huh? But, these were the reasons the Supreme Court gave. It’s arguable that they were stretching their reasons to fit within the overall fairer decision that they wanted to make because it now means that Mr Mohamud, who passed away before the Judgment was handed down, from unrelated reasons, can claim compensation for the impact that the severe head injuries and attack had on his life.

I can see two sides to the argument that employers should bear the overall responsibility in cases like this; the first is that it could put an unfair onus onto the employer in situations where they have an aggressive and unmanageable employee who goes off on a frolic of their own and doesn’t act within company policy or just general reasonable conduct. Why should the employer have to pay out for behaviour that they don’t condone and isn’t what they have asked of the employee?

However, the flip side, and I think the stronger argument probably is that there should be a high burden on employers to hire and train competent employees. Wouldn’t it be even more unfair to go into a Supermarket, be assaulted by a member of their staff and for the Supermarket to shrug their shoulders and say “well, we didn’t tell him to do that”. This would also mean that a Claimant with life changing injuries caused during such an attack, who can potentially never work again, can’t be recompensed for their losses. The unjustness of this scenario doesn’t sit well either.  

Perhaps this Judgment will encourage employers to put in place a better standard of assessment for hiring? It will be interesting to see whether the Courts accept this reasoning or try to depart from it in cases to come